Ong Mingwee (alias Wang Mingwei) v Public Prosecutor

1 The appellant, Ong Mingwee, a 29-year old male, was charged and convicted by the District Judge of committing rape on a 25-year old female (“the complainant”) on 12 February 2009. He was sentenced to seven years’ imprisonment and eight strokes of the cane. The appellant appealed against the conviction and sentence. The court allowed the appeal and acquitted the appellant of the charge of rape.

2 The brief facts of the case are as follows. The appellant, who was with her other friends, met the complainant at the club, Zouk, in the early hours of 12 February 2009. The appellant and the complainant were dancing together. When the club closed, the appellant and complainant left together in a taxi. They ended up at the appellant’s flat and had sexual intercourse. After that, the complainant left, waved down a motorcyclist who sent her home.

3 The issue before the High Court on appeal was whether the complainant had consented to sexual intercourse with the appellant. It was undisputed that the appellant did not physically restrain the complainant or use any weapons to incite fear or threaten her during the alleged rape: at [17].

4 The oral testimony of the complainant’s friends who were at Zouk did not support the contention that the complainant was so severely intoxicated that her ability to protect herself or give consent had been impaired: at [23]–[24]. The complainant’s friends also testified that the complainant had chosen to go home with the appellant rather than with another male friend: at [25]–[26]. Thus, the court found that the complainant had made a deliberate and considered choice to enter the taxi with the complainant and was capable of consenting to sexual intercourse sometime later at the appellant’s house given that she had stopped consuming alcohol after leaving Zouk: at [28].

5 On whether the complainant had in fact consented to sexual intercourse later at the appellant’s house, the court found that there were gaps in the complainant’s testimony. She could not remember key factual details leading up to the alleged rape (at [30]–[35]) such as:

Who she danced with at Zouk or how she got into the taxi with the appellant;

What happened inside the taxi and whether the appellant had asked her to go to his house;

Who she was talking to on the phone when the appellant allegedly snatched her phone, and what happened when she allegedly tried to retrieve her phone;

How and under what circumstances she had come to the view that the appellant would not let her go home unless she had sex with him; and

The court noted that the complainant could not offer any explanation as to why she feared for her life and what the appellant did in order to create such fear in her.

6 The court also found that the complainant could not remember how many times or when she said “no” to having sex with the appellant. The complainant also seemed unclear as to when her panties were removed, or whether she was wearing her brassiere. She was also unable to assist on what happened during intercourse, or thereafter. When questioned about why she formed the view that the appellant would not let her go home if she did not have sex with him or how she pleaded with the appellant, a pivotal aspect of the charge, the complainant could not recall any detail. I am particularly troubled by the fact that the complainant could not explain why she simply did not leave or even attempt to leave and what the appellant did to make her believe that he would not let her leave.

7 The court also found that there were factual difficulties with regard to numerous telephone calls between the complainant and her friend, and the complainant and her mother: at [53]–[58]. The court was also noted that although there were calls between the complainant and persons with “unknown numbers” during the material time, there was no evidence from either party as to who the complainant was speaking to in these calls from the “unknown numbers”. On the totality of the evidence, the court was of the view that in the material time in which the complainant had multiple telephone conversations, she was in control of her phone and was able to use it when she wanted to: at [62]. The fact that she did answer the phone selectively, particularly in relation to calls made by Ms Z and when she spoke to unknown callers contradicts the degree of panic or fear she alleged that she was in. Such control or capacity for choice also begged the question of why, if not by reason of fear of the appellant, the complainant did not resist the appellant’s advances.

8 The court ultimately found that while the complainant’s behaviour at the appellant’s house may have been erratic, it was plausible that the complainant had consented to sexual intercourse with the appellant. The court was not satisfied that the appellant had held the complainant in his house against her will, or that the complainant was in a state of panic and distress that she was under the impression that the appellant was going to rape her: at [67]. The Prosecution had not proved the complainant’s lack of consent to sexual intercourse with the appellant beyond reasonable doubt.

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.